The European Commission adopted a new Remedies Directive (2007/66/EC) in December 2010 which introduced changes to the legal remedies available for breaches of EU procurement law:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32007L0066:EN:NOT.
The key aims of the Remedies Directive are to:
- make the procurement process more transparent;
- further deter contracting authorities from awarding contracts in breach of procurement rules;
- improve the legal remedies available to aggrieved bidders where the rules have been breached.
The new remedies rules apply to procurement processes that start on or after 20 December 2009.
Implementation of the Directive in Scotland - consultation exercises
The Scottish Government conducted two public consultation exercises on implementation of the Directive in Scots Law.
The first consultation sought feedback on the Scottish Government's approach to implementation of the Remedies Directive and took place from August to November 2008. The consultation was publicised via Scottish Procurement Policy Note 8/2008 which was distributed to public sector procurement organisations and to others with an interest in public procurement. We received a total of fifteen responses to the consultation. Where respondents gave permission for their response to be made public, these were published on the Scottish Government's website on 28 November 2008. An analysis of the responses was published on 13 February 2009.
The second consultation sought feedback on draft regulations and a number of outstanding questions relating to implementation of the Remedies Directive and took place from June to August 2009. The consultation was publicised via Scottish Procurement Policy Note 3/2009 which was distributed to public sector procurement organisations and to others with an interest in public procurement. We received a total of twenty-four responses to the second consultation and have taken full account of these in finalising this instrument. Where respondents gave permission for their response to be made public, these responses are available on the Scottish Government website.
Implementation of the Directive in Scotland - amending Regulations
The Remedies Directive has been implemented in Scots law by the Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2009 (S.S.I. 2009/428): http://www.opsi.gov.uk/legislation/scotland/ssi2009/ssi_20090428_en_1 which came into force on 20 December 2009. The Executive Note and accompanying Transposition Notes and Regulatory Impact Assessment can be accessed below.
Executive Note:
The Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2009
Transposition Notes:
Directive 89_665_EEC (Public Contracts Remedies Directive) as amended by Directive 2007_66_EC#2
Directive 92_13_EEC (Utilities Contracts Remedies Directive) as amended by Directive 2007_66_#2
Regulatory Impact Assessment:
Final Regulatory Impact Assessment
Guidance on the new remedies
Scottish Procurement has published the following guidance on the changes introduced by the Remedies Directive: